Federal judge OK's use of phone 'metadata' to track child porn

By Carol Christian |
February 4, 2014

Donald Post Sr. of League City is listed as a registered sex offender.

Donald Post Sr., 69, was in the Galveston County Jail Tuesday on a four-count federal indictment, including possession and distribution of child pornography.

A federal judge in Galveston has ruled that investigators can use "metadata" in online images to track the source of child pornography.

U.S. District Judge Gregg Costa wrote in a Jan. 30 order that data embedded in an online photo of a 4-year-old girl solved the "needle-in-the-haystack problem" facing FBI agents trying to trace its origin.

According to the judge's ruling, the metadata led the agents to the League City home of Donald Post, Sr., who admitted taking the photo, as well as others of a child who had recently stayed at his home.

One image showed what appeared to be a man's hand pulling aside the underwear of a young girl, with the focus on the exposed genitals, the document states.

"Other than the clue that the house where the photo was taken contained a white leather couch, the image provided no indication of where in the world the photo was taken," the judge wrote.

In this case, the Internet Protocol (IP) address was not helpful because the computer user had used a browser designed to make the IP address anonymous, Costa's order stated.

Metadata for a digital photo taken with a smartphone typically includes the GPS coordinates of where it was taken, Costa wrote, citing a recent Texas Bar Journal article.

Analyzing the metadata, agents determined that the photo was taken with an Apple iPhone4 July 23 at a home in League City. At the first house the agents visited, the residents said they didn't have an iPhone 4 or a white leather couch but indicated that a registered sex offender lived about 100 feet away, within the iPhone's GPS location range of error, the judge wrote.

The agents went to Post's house and saw that the couch in his house matched the one in the photo. post admitted that he took the picture with his iPhone 4 and uploaded it to the Internet, the judge wrote. Agents then obtained consent from Post to conduct a forensicexamination of his laptop and iPhone, documents state.

But in a document filed Dec. 20, Post's attorney, John Friesell, argued that even if the defendant is found to have abandoned his claim to privacy, he did not do so voluntarily.

"The phone automatically retrieves GPS coordinates without notifying the user when it does so," Friesell wrote in support of a motion to suppress evidence obtained in violation of the Fourth Amendment to the U.S. Constitution. That amendment prohibits unreasonable searches and seizures.

"Thus, although the image was contraband, the legitimate expectation of privacy as to location and identity is not rendered unreasonable," Friesell wrote.

The judge disagreed.

"He gave up his right to privacy in that image once he uploaded it to the Internet, and that thing he publicly disclosed contained the GPS coordinates that led agents to his home," Costa wrote. "There is no basis for divvying up the image Post uploaded into portions that are now public and portions in which he retains a privacy interest."

The judge noted that the case does not address constitutionality questions raised by the National Security Agency's bulk collection of telephone metadata.

"Whatever the ultimate outcome of that issue in higher courts, whether an individual lacks a privacy interest in dialed numbers because those numbers are necessarily disclosed to his phone company is a much different question than whether an individual loses his privacy interest in an item because he voluntarily makes it publicly available on the Internet," the judge's ruling stated.